COGTA audit: Auditor-General input; Traditional Leaders and Khoi-San Amendment Bill: deliberations

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Cooperative Governance and Traditional Affairs

03 October 2017
Chairperson: Mr M Mdakane (ANC)
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Meeting Summary

Auditor General South Africa (AGSA) presented its budgetary review and recommendations report for the Department of Cooperative Governance and Traditional Affairs (COGTA) based on its 2016/17 audit.
The COGTA portfolio’s overall outcomes improved as a result of the clean audits of the Department of Traditional Affairs and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. The Municipal Infrastructure Support Agent (MISA) and the Municipal Demarcation Board (MDB) again obtained an unqualified audit with findings. MISA however had some material misstatements but they managed to make the necessary amendments so that their financial statements were fairly presented. The MDB had some remaining compliance and performance information issues. The Department of Cooperative Governance (DCoG) remained stagnant with a qualified audit opinion in 2016/17.

Members expressed disappointment over the absence of the Minister and the Department. The Minister should have been present so that he could account for the audit findings. Members asked what the Minister’s response was to the DCoG qualified audit. The Chairperson explained that the Minister would be present at the meeting the following day.

Members sought an explanation for the Municipal Infrastructure Support Agent poor performance in leadership and financial management. They asked about the relationship between MISA and COGTA.

Members agreed that the Portfolio Committee needed to exercise increased oversight by holding accountable officials who fail in their duties. Another key concern by Members was COGTA claiming to be on track to meet their goals. Members highlighted that the outcomes proved otherwise and that accountability needed to be applied.

The DA asked AGSA if it was aware of the affidavit about the interaction between the Minister and Trillian Management Consulting and Oliver Wyman Consulting; if it formed part of the Auditor General’s audit and were there any findings. AGSA was asked if it subcontracted its work to private firms such as KMPG

The Committee reviewed the latest working document of the Traditional and Khoi-San Leadership Bill clause by clause.

Members deliberated Clause 2(2)(a) with the DA suggestion the insertion of the word “faction” to safeguard traditional councils from being biased towards party or factional interests. The ANC asked what the word “faction” meant and whether the word was appropriate to be used in the law. COGTA suggested that “grouping” be used as opposed to “factionalism”. The Chairperson agreed that “grouping” better captured the clause.

The DA suggested the removal of Clause 9(7) since it contradicted the Committee’s previously agreed upon stance. If someone has served more than 12 months in prison without the option of a fine, one is not allowed to serve as Member of Parliament, a Councillor or Member of a Provincial Legislature. Clause 9(7) instead insinuated that the person could return to be a leader after five years. The Chairperson agreed with the DA’s position and said that permanent disqualification should be applied. Clause 11(8) was also removed to align with the Committee’s agreement.

The ANC expressed concern over the removal of Clause 9(7) and asked what would happen in the case where there was no successor. It was extensively explained that kingship is tied to royal houses and once the kingship is removed from the royal lineage it would be difficult to retain it and this often causes disputes. The Director General said that different cultures had hierarchies in place that served as contingent plans for the filling of vacancies. The ANC further asked if women were taken into account during the process of filling the vacancy. It was highlighted that women traditionally tended to be overlooked on matters of kingship, how would the Bill deal with this.

Members deliberated in Clause 33(1)(b) on the use of the wording “must” or “may”. The DA argued that using “must” obligates the President to meet with traditional leaders and warned Members against imposing anything that the drafters of the Constitution had no intention of imposing on the President. The Committee agreed that “must” should be changed to “may”.

The DA noted that Clause 36(1)(a)(ii) was vague. It was argued that the principle of ubuntu was a vague criterion to place as a duty on the royal house. “Nation building” was suggested as a better replacement. The Committee agreed to the replacement.

Clause 63(17) and (18) was deliberated on and it was requested by the DA that these be removed as they do not align with the criteria that a person should be South African citizen to be a member of the traditional council. COGTA replied that provisions for membership disqualifications were detailed in the Framework Act.

The Committee concluded that the amendments made would be implemented and these would be presented to the Committee on 10 October.

Meeting report

COGTA audit outcomes: Auditor-General South Africa (AGSA) input
Ms Ilze Slabbert, AGSA Senior Manager, presented a budgetary review and recommendations report for the Department of Cooperative Governance and Traditional Affairs (COGTA) with an overview of the for 2016/17 audit outcomes of the COGTA portfolio.

Overall audit outcomes:
Ms Slabbert commended the portfolio for the improvement on the audit outcomes. The portfolio had two clean audits which is the Department of Traditional Affairs (DTA) and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL Rights Commission).

The Municipal Infrastructure Support Agent (MISA) and the Municipal Demarcation Board (MDB) consistently achieved unqualified audit with findings. MISA however had some material misstatements but they managed to make the necessary amendments so that their financial statements were fairly presented. The MDB had some remaining compliance and performance information issues. The Department of Cooperative Governance (DCoG) remained stagnant with a qualified audit opinion in 2016/17.

Compliance with key legislation:
AGSA is still encountering issues with the Department of Cooperative Governance (DCoG), MISA and MDB over predominantly supply chain related irregular expenditure and these three entities not adhering to the supply chain rules and regulations.

Quality of annual performance plans:
AGSA has had a big challenge with the department because throughout their Annual Performance Plans (APP) used terms such as “support monitoring” and “opportunities”, these terms were not well defined. AGSA found that even within the department there is no common understanding of what is being measured. It negatively impacts on reliability of the performance that is being reported.

Status of key controls:
DCoG and MISA were still experiencing significant lack of oversight in ensuring proper compliance monitoring.

Assurance providers per level:
The AG had concerns with entities that received poor audits. MDB had improvements compared to last year’s audit; however MISA and DCoG require significant intervention to ensure that they improve.

Performance management:
There were no material findings for DTA, as AG was able to corroborate what was reported by the department. MISA and DCoG regressed.

Community Work Programme (CWP)
- Department unable to account for CWP assets of R23,83 million
- Lack of supporting evidence provided for project management fees paid to the implementing agents
- Continuous non-compliance with SCM laws and regulations for CWP related procurement
- CWP targets were not measurable as work opportunities were not appropriately defined.

CWP Project
R820 million was underspent on the CWP programme due to a delay in approval of the Standard Operating Procedures for CWP procurement for implementing agents.

Compliance with legislation and quality financial statements
Material misstatements: MISA managed to alter their financial statement while COGTA failed to do so.

Unauthorised, irregular as well as fruitless and wasteful expenditure disclosed in the financial statements
Irregular expenditure declined: R429 million in 2016/17 as opposed to R649 million in 2015/16.

Fraud and consequence management:
Investigations to be conducted on allegations of financial and/or fraud and SCM misconduct within DCoG

The commitment by the Minister to monitor the implementation of audit action plans is in progress.

Top three root causes for audit findings:
- Slow response by management
- Instability or vacancies in key position
- Lack of consequence for poor performance and transgression

Correlation between low accountability, corruption and impact on service delivery
Rate of corruption increased by the level of discretion that a department has.

Mr K Mileham (DA) highlighted that MISA’s annual financial statements were audited on time and asked if there was any subsequent delay in submitting it to MISA management. MISA had requested an extension in tabling their Annual Report to Parliament on the grounds that there was a delay on the audit side.

His biggest concern was that there was a repetition on the challenges raised last year about the CWP. He addressed the Chairperson and said it displayed that the committee was not holding people to account, the Committee lacked oversight. Part of the AG recommendations for the Committee had been accountability and that is what the Committee has been calling for but part of the problem was that the Department claims to be on track but the results display otherwise. Officials needed to know that if they present inaccurate information to the Committee then they will be shown the door. DCoG had the biggest budget and structure and it was unacceptable that it annually produced a qualified audit. He took the comment that "commitment by the Minister to monitor the implementation of audit action plans is in progress" with a pinch of salt. An audit action plan existed last year, why was it not monitored last year? Why has there not been an improvement from last year’s audit? Why is the Minister not here? The Minister has not attended a single Portfolio Committee since the start of this year? How are we supposed to hold him accountable? It is the same with MISA, it used to appear before the Committee regularly. When was the last time MISA appeared before the Committee?

Ms Slabbert responded that the audit was finalised on 31 July. The Minister had raised some concerns with the AG and the AG committed to look into the concerns hence there was engagement with National Treasury on certain supply chain matters. However, the audit outcome did not change because of that. Due process was followed, AGSA was committed to ensuring that the audit outcomes are correct.

Mr E Mthethwa (ANC) agreed with Mr Mileham about the Committee conducting more oversight. His concern was with MISA, and its poor performance in leadership and financial management. He asked if this was related to the department? Is what went wrong with MISA the same thing that went wrong the department? What is the relationship between MISA and the department? What is the core relationship? He asked what were the concerns the AG was raising about the MDB? Can the same recommendations be applied, and if they have been applied, have there been any improvements?

Mr C Matsepe (DA) asked what was the Minister’s reaction to the audit report?

Ms B Maluleke (ANC) expressed concern at the absence of the department. She said that the Committee was posing questions to the AG when the people who are supposed to account were not there and requested that the next time the AG presents the audit report, the Committee should be able to directly question the department. The Committee needed to tighten oversight over the department.

Ms N Mthembu (ANC) expressed disappointment at the outcomes. She reiterated Mr Mileham’s concern of the department always telling a good story about the CWP but the areas where they have achieved are not convincing and this shows a different story. She also was concerned about the department not being present at the briefing. The Committee needed to be seen being hands-on in dealing with the department when it fails to fulfil its duties.

Mr Matsepe emphasised that the Minister must be called to come and account.

The Chairperson replied that the Minister will be present in tomorrow’s meeting to account. He had requested the Minister not to come as he wanted the Committee to use the briefing as an opportunity to discuss amongst themselves and engage with the AG. The Committee should however take note that the accounting officer is the director general.

Mr Mileham clarified that the Minister is the executive authority of the department. The minister reports to Parliament while the director general reports to the minister. Therefore, the Committee should hold the Minister accountable.

The Chairperson reiterated that the accounting officer is the director general and that the minister plays an executive role. The Committee will engage both of them tomorrow on various matters. He highlighted that MISA is a permanent problem and asked if the portfolio has a CEO? DCoG is another portfolio that lacks a director general and encouraged the Committee to raise this with the Minister the following day so that these issues do not appear again in next year’s report.

Ms Slabbert explained the relationship between MISA and the department by reminding Committee members that MISA was a part of Cooperative Governance, it is classified as a government component. There was a very big link between the two as they are part of executing the mandate of the department on municipal infrastructure. There is commonality, they both struggle with the support milieu and struggle with chain management and procurement

She replied that there was a significant improvement by MDB since last year. The only issue was the mix up of terminologies such as “technical alignment of municipal boundaries” versus “technical assessment of municipal boundaries” - these are two separate terms. However, it was still measurable, what the MDB reported in their Annual Performance Report was accurate. The challenge they face is procurement planning perspective, they failed to plan ahead.

Ms Mabatho Sedikela, AGSA Corporate Executive, replied that the Minister welcomed the audit outcomes especially the improvements linked to the South African Local Government Association (SALGA). DCoG regressed under the current Minister’s leadership and the Minister was aware of what needs more attention. AGSA would like to see more commitment to this lack of performance. She advised the Minister to look at the trend at MISA and results were not encouraging, much still needed to be done. AGSA is not seeing the type of focus it would like to see. Once the Minister start exercising immediate impatience, this will permeate into the environment and perhaps it might result in improvement.

Mr Mileham asked about the affidavit made public last week about the interaction between Minister van Rooyen and Trillian Management Consulting and Oliver Wyman Consulting. He asked if AGSA was aware of the interaction, whether it formed part of the audit and if there were any findings on that.

Ms Slabbert responded that as part of the AG’s risk assessment procedures, the AG monitors media reports and it was taken into account. The matter did come to the AG’s attention and necessary steps were taken to ensure that it does not impact the audit outcome. AGSA was tracking it and it would ensure that it appropriately takes into consideration everything that is being reported in the media.

Mr Mileham expressed his confusion because the report was for 2016/17. The interactions between Oliver Wyman, Trillian and DCoG took place in the previous year. He therefore sought clarity on whether the interaction was audited, whether it was found to be a deviation and whether there was any expenditure.

Ms Slabbert confirmed that the AG did go through all the transactions. She cannot answer any questions related to the actual interaction of the parties because it is not within the scope of AGSA. From a financial perspective and from what the AG could see on paper, there was no detection of any procurement with Trillian in 2016/17. The audit only looked at what was presented to them. In cases where there were irregularities, there could be attempts to hide these which the AG does not investigate.

Mr Mthethwa asked if any of the AG’s work has been subcontracted to private audit firms such as KMPG.

Ms Sedikela responded that SALGA’s past five years audit has been conducted by KPMG due to the AG’s internal rotation process. The recent rotation has resulted in SALGA being allocated to Grant Thornton for 2017/18. She clarified that the recent rotation was not related to the current KMPG issue.

Mr Mthethwa asked which audit firm assists the AG team with the bulk of its work. He wanted to know how much of the outcomes presented today represent subcontracted work.

Ms Slabbert replied that MISA was jointly audited with a private firm, the MDB was audited by the AG itself and CRL Rights Commission was audited by a private firm. She noted that AGSA cannot handle the load of work on its own. When a private firm is contracted, the AG ensures that its standards are met and when they are not met, appropriate steps are taken. Contract work contributed to the AG’s community development and upliftment.

Mr Mileham commented that he found it interesting that SALGA has been audited by KPMG for the past five years and for the past five years SALGA has had clean audits.

The Chairperson acknowledged the KPMG issue and that the AG was pleased with the work done by private firms. Diversion did not mean SALGA’s audit outcome was inaccurate. He was pleased that the Committee was raising these types of questions. Parliament has taken a stance on KMPG and has withdrawn from dealing with it as a client and that this was a private entity. It was not this Committee’s responsibility to deal with the matter.

Ms Maluleke referred to the CWP key findings and asked what was meant by “supporting documents”. What were they looking for and what did they not find? The Committee needed to engage with the Department and ask them how they have been paying implementing agents with no supporting documents.

Ms Slabbert replied that there was no agreed upon standard amount paid to the implementing agents when they entered into the agreement. There were requirements that anything the implementing agents pay for - whether salaries or computers - all supporting documents need to come to the department. She explained that she was not referring to all documents but rather a material portion of the documents were missing. The AG expected a document to validate that the payments were legitimate.

The Chairperson repeated that this must be raised with DCoG. It is an issue that affects small towns that lack infrastructure, which in turn affects community workers and job creation because it cannot be quantified if there is no documentation.

Ms Sedikela replied about the SALGA audit reiterating that even though the AG subcontracts work, the AG ultimately remains responsible. The quality standard the AG has is that the audit opinion the private firms express is one the AG would have expressed itself. The AG was aware of the KMPG dilemma, however she assured Members the AG retains ultimate responsibility for any contract work.

Mr Mthethwa said that he was not challenging the professionalism of the AG. His concern was the AG’s statement that “we do not mind with who we contract”. In light of the KPMG dilemma, one should be careful about using that statement.

Ms Slabbert thanked the Committee for the support it provides to the AG. The audit action plans containing 30 to 40 items do not work. She agreed that it is better rather focus on one or two critical matters that would make an impact. She expressed her apologies for her response on contract work if it may have come out incorrectly.

Ms Sedikela echoed the apology and stated that the AG merely sought to give Committee members comfort that the work the AG does remain uncompromised. She reiterated that she hopes that the Minister moves with impatience to address the issues.

Traditional and Khoi-San Leadership Bill: Clause by Clause deliberations
The Chairperson stated that the last engagement ended with the conclusion that the drafting team deal with the issues that had been highlighted in the deliberations. The business of the Committee was to check the proposed amendments and the new version of the Bill to check if all the amendments were included.

Clause 2
In Clause 2(2)(a), Mr K Mileham (DA) suggested that it state that it must not be used to promote or prejudice the interest of any political party. She suggested the insertion of “faction” of a political party to promote or prejudice any candidate in any election whether internal or external.

The Chairperson said the provision would be to safeguard that traditional councils do not take sides. It is to ensure that parties are not excluded or to impose a biased view or the pursuit of factional interests.

Mr Charles Nwaila, Director General: Department of Traditional Affairs, acknowledged that it was a good point.

Ms Maluleke asked what Mr Mileham meant by “faction”.

Mr Mileham, provided an example of “Ramaphosa vs Nkosazana Dlamini-Zuma” or “Patricia de Lille vs Helen Zille”

Mr Rinaldi Bester, COGTA Chief Director: Policy and Legislation, Department of Traditional Affairs, sought clarity on what exactly is meant by “internal” or “external”

Mr Mileham clarified that "internal" referred to within a party, internal to a school governing body for instance, or "external" as in general election. He asked that the law advisors provide better wording.

Mr Mthethwa asked if the word “faction” is used within the law.

Mr Mileham clarified that when a word is used in law, it is ascribed its common usage or understanding unless otherwise defined by the legislature. A faction of a political party is a grouping within a party. The clause therefore would prevent the usage of the resources of a traditional council to promote or prejudice one group over another.

Mr Mthethwa said that he was not challenging Mr Mileham’s view. Instead he sought clarity on whether the word “faction” could be used within the law. He asked the legal advisors to provide insight on the matter.

Ms Bongiwe Lufundo, Principal State Law Adviser, replied that the wording would need to be checked before confirmation and they would refer back to the Committee.

The Chairperson requested that the word be checked to see if it aligns and can be used within legislation.

Mr Bester recommended that the word “grouping” be used as opposed to factionalism.

The Chairperson agreed that “grouping” better captures the intent of the clause.

Mr Nwaila asserted that the clause was important and that clarifying this would help clarify the clause.

Clause 8
In Clause 8(1)(a)(i), Mr Mileham referred to when a royal family identifies someone who is currently a Member of Parliament or Provincial Legislature or a Councillor. Once the person is recognised, they can no longer be both, they can only be one or the other. Does the clause permit both?

Mr Bester replied that there had been a lot of discussions on disqualifications and this clause related to disqualifications. Once someone is recognised, they cannot fulfil both positions. Someone in an  acting position would have to be appointed as a replacement if the person is a Member of Parliament or Provincial Legislature or a Councillor.

Clause 9
In Clause 9(7), Mr Mileham read that “providing that any disqualification in terms of this Act relating to a sentence or imprisonment for a period of more than 12 months without the option of a fine in five years after the sentence has been completed.” In other words, one could become a traditional or Khoi-San leader five years after the end of the sentence. When the Committee previously discussed this clause, it was agreed that when one has served more than 12 months of jail time without the option of a fine, one would not be allowed to serve as Member of Parliament or Provincial Legislature or a Councillor. This clause in contrast insinuates that five years after the sentence, one can be a traditional leader again. He suggested removing this as once someone has served jail time, they should not be permitted to serve as traditional leaders

Mr Nwaila fully agreed that the Committee needed to tighten the clause. He stated that the Framework Act tended to have a grey area here. Clarifying it will prevent or might influence people to refrain from engaging in criminal activities.

The Chairperson agreed that the permanent disqualification that applies to Members of Parliament should be extended to traditional leaders.

Mr Nwaila provided an example that should a leader returns from serving jail time and is allowed to occupy a position of leadership again, royal family members that might have reported the leader would face the possibility of being victimised as he/she would have power over them.

Clause 11
In Clause 11(8), Mr Mileham said that the section needed to be removed to align it with what had been agreed on about the permanent disqualification of traditional leaders that have been convicted

Mr Mthethwa highlighted that kingship is tied to a royal house. He asked what happens in the case when there is no successor. He expressed concern that succession often raised disputes because traditionally, kingship should remain within the royal lineage. Once it is removed due to a lack of successor or the successor being too young, it is difficult to return it to the royal house and this often leads to disputes.

Mr Matsepe asked if there cannot be a person who assumes the position as an actor.

The Chairperson responded that there will always be a regent who acts on behalf of the minor.

Mr Nwaila stated that there were provisions for this in different cultures mainly in the form of hierarchies that have contingent plans for these sorts of issues. The hierarchy allows the kingship to remain within the royal lineage, thus there will not be a case where they completely run out of options. Should there be a vacancy, someone can be identified to act until a suitable candidate is found.

Mr Mileham noted that the legislation allowed for the filling of vacancies.

Ms Maluleke asked if women were taken was into account when filling vacancies. Women are often traditionally side-lined in cases of kingship. When the rightful heir/king has been convicted, why was the wife not appointed to act on behalf of the minor? She reiterated Mr Mthethwa’s point about the disruption of royal lineage, saying that returning the kingship to the rightful royal house would be difficult.  How do we deal with the issue of women being overlooked and external members vacating these positions?

Mr Nwaila responded that some royal families have decision making powers to rank wives. In this case, the kindle wife assumes the acting position. He provided an example of the King Dalindyebo situation, were the wives were not ranked and thus external people had to be identified to take over. He emphasised that this was an area that needs to be strengthened.

The Chairperson emphasised that the Bill needs to align with the Constitution. The Constitution does not permit a gender bias and thus women cannot be overlooked because it would be illegal and unconstitutional.

Mr Nwaila offered another example of the kindle wife, she bears the children who will be the heir/successor thus there will be no contestation. He stated it was only in cases when the wives were not ranked that the king’s younger brother would have to be chosen to fill the vacancy.

Clause 14
Mr Nwaila pointed that recognition needed to occur within a period of 90 days. He asked what happens if a traditional council or king/queenship council does not act within this time period.

Mr Mileham suggested that there needs to be a clause that addresses this.

Mr Bester responded that provisions to address this have been made on the top of page 45.

Ms Lufundo highlighted sub clause 8 on page 44, and suggested that the reference to 9(1)(a)(1) or section 11(1)(a)(1) proviso and the entire wording be removed because the leaders will not review their position.

Mr Nwaila noted the deletion of king/queen on page 46 and suggested that the appropriate word is traditional leaders to encapsulate and include kingships and other titles that are not included.

Mr Bester highlighted that the Committee previously discussed the position of deputies and it was agreed that the king or queen could not have a deputy. The chairperson instructed the legal team to remove it everywhere.

The Chairperson asked Mr Nwaila whether it is possible for the king to have a deputy.

Mr Nwaila responded that kings cannot relinquish their position and serve in a municipal council or serve in Parliament because at the king level the king is not spoken to directly.

The Chairperson clarified that deputies were not needed because kings/queens would remain in their position and thus would not need to appoint any other person.

The Chairperson noted on page 51 on top that the clause allowed for boundary changes, the demarcations would be clear.

Clause 17
Mr Mileham said that in 17(5) he preferred that the chairperson of the tradional sub council is elected rather than imposed on them, as it was more democratic.

Mr Nwaila responded that it is an extension of the traditional council and that usually the person nominated should be a representative of the traditional sub council. He agreed that at that level it would be better for the person to be nominated from those serving on the traditional council.

Clause 18
Mr Nwaila strongly suggested that there should be a qualifier when the Auditor General subcontracts external auditors to audit financial statements, he argued this would ensure credibility.

Mr Mileham added that provision for this was covered for in sub clause three on page 59.

Mr Bester responded that the Public Audit Act provides guidance on this matter.

Mr Mileham addressed the Director General’s concern by suggesting the insertion of the word “registered auditor” and the auditor must be registered with the Independent Regulatory Board for Auditors (IRBA).

Clause 22
Mr Mileham expressed concern about Clause 22(3) and (4)-(7).

Mr Nwaila emphasised that the clause should be explicit.

Clause 23
Mr Mileham referred to Clause 23 (4)(b) and noted that there had been an insertion of the word “overseeing” however the provincial government where a branch of a Khoi-San community had been recognised was responsible for oversight.

Mr Bester stated that the idea was that they would be responsible for it. He reminded the Committee that branch heads can be in different provinces from where the main community is.

Clause 24
Mr Mileham raised a concern about 24(6)(c) about all existing deals. He suggested that all partnerships and agreements in existence at the date of the Act's enactment must be reviewed within two years by the Premier.

Mr Bester responded that provision of Mr Mileham’s concern was covered on page 115, it was included as a traditional arrangement.

Mr Mileham raised a concern that the clause fails to mention participation by the broader community in agreements and partnership.

The Chairperson agreed and flagged the point.

Mr Nwaila reiterated the importance of the community being informed about the partnerships and agreements that the king/queen signs. He stated that spelling it out will facilitate harmony within communities.

Mr Mileham suggested that it needed to be inserted under Clause 24(3).

Mr Bester stated that the traditional council was elected to represent the community, it was this council that entered into the agreement or partnership. He argued that if the Committee insisted on explicitly stating the participation of the community then it should be under Clause 24(6).

Mr Nwaila argued that even if there is a representative structure, the issue was accountability. There needed to be structures in place that ensure accountability to community members.

Clause 25
Referring to page 69, Mr Mileham suggested that the roles and responsibilities of the traditional leaders should be made public. He asked how members of the public can check if traditional leaders have the authority to do what they claim they have the power to do.

Mr Matsepe stated that conflict over this arises mostly within the royal leadership because traditional leaders often take actions that the community is not aware of or not informed about.

In Clause 25(4), Mr Mileham raised concern about cases when council leaders are not performing. In the case of withdrawal of resources from a traditional council, he envisioned a process similar to that of a municipal council where it would be placed under administration. He suggested that an intervention is required for cases where the council is not performing.

Mr Bester responded that the previous clause that deals with administration made provision for cases where the whole council can be placed under administration.

Clause 33
In Clause 33(1)(b), Mr Mileham raised concern with the wording “must” and suggested it should be changed to “may”.

The Chairperson asked what is the suitable legal word.

Mr Nwaila argued that the suitable word is “must” thus making it compulsory for the President because the President outlined his priorities for the year in February during the State of the Nation Address. Once the President has shared his broader vision for the year then departments can assist in implementing projects relevant to rural development.

Mr Mileham stated that by making it “may” it is at the President’s discretion, “must” insinuates that he is obligated to address the House of Traditional Leaders which he clearly was not according to the Constitution. He warned the Committee against imposing anything that the drafters of the Constitution had no intention of imposing on the President.

The Chairperson stated that it would be very rare for the President not to want to address the House because it is very influential. Using “must” makes it constitutional and it is not constitutional, it is at the discretion of the President.

Mr Nwaila agreed that “must” should be changed to “may”.

Clause 36
In Clause 36(1)(a)(ii), Mr Mileham said that the principle of ubuntu was a very vague criterion to place as the duty of the royal house. He suggested that “nation building” was a better word.

The Chairperson said that there was an extensive discussion on this and the basis of the discussion was that the Constitution was based on the philosophy of ubuntu and social justice.

Mr Nwaila agreed with Mr Mileham that the term was too broad and vague.

Mr Bester agreed that the term would be removed.

Clause 40
Mr Mileham expressed concern over the lack of referral to the National House interacting with Khoi-San communities, it listed kings/queens/traditional leaders but did not require interaction with Khoi-San communities over matters that may affect them.

The Chairperson reiterated that the National House had the responsibility to build relationships with all types of traditional leaders because the real essence of the Bill is the recognition of the Khoi and San.

Mr Mileham suggested that the National House may meet with any recognised Khoi-San leader. This would allow any recognised Khoi-San leader the ability to engage in the broader dialogue

Mr Bester suggested that 41(2) allowed for local and provincial structures to engaged with the Khoi-San leaders. It is in the absence of these structures that the National House can be engaged.

On page 82, Mr Mileham did not agree with the establishment of an ethics committee. There was a discussion about the National House being open to the public. It would only be closed subject to the rules. However it was not stated in the Bill.

The Chairperson reiterated that Parliament was open to the public.

Mr Nwaila agreed that it should be stated in the Bill because it promoted transparency.

Clause 61
In Clause 61(5), Mr Mileham proposed that it should be inserted that a Premier must inform the Minister of any delegation “within 30 days”.

Clause 62
In Clause 62(4), Mr Mileham suggested the insertion of “and is consistent with the requirement of the Traditional Leadership and Governance Framework Act” because they might be recognised but the Amendment Act legitimised traditional authorities that were not legitimate in terms of the election. He stated that the traditional authorities needed to be compliant for them to continue.

Mr Bester responded that the date of 24 September 2004 was the date the Framework Act came into operation. It acknowledged tribal authorities that existed prior to the Framework Act, it further acknowledged that these authorities did not meet the requirements and made provisions for them to meet the requirements of section 62 within two years. Should the authorities not meet the requirements, the Minister was expected to take recourse measures to ensure that they meet the requirements.

The Chairperson highlighted that following the enactment of this Bill, the word “traditional council” will replace “traditional authorities”.

Mr Nwaila stated that there needed to mechanisms in place should authorities not take steps to meet the requirements within the proposed two-year period.

Mr Mileham highlighted sub clause 6(c) which stated that if the timeframe of two years is not met, the Minister may take appropriate steps.

Clause 63
In Clause 63(17) and (18), Mr Mileham raised that the sub-clauses contradict the clause that required that members should be South African citizens as a criterion for membership. He suggested that 63(17) and (18) be removed to comply with 63(16).

Mr Bester responded that those disqualifications exist within the Framework Act thus any person who becomes a member after the Bill is passed must be tested against the disqualifications.

Mr Mileham highlighted that the Department’s track record since 2004 had not been great, because it required each member criteria to be checked. He suggested that the Bill should clearly state the criterion by removing 63(17) and (18).

Mr Bester said that removing the sub-clauses may cause challenges because members will be reconstituted. He clarified that the sub-clause merely states that if a person was currently a legitimate member, by the time the Bill becomes effective, the person will continue being a member until the expiry date of the membership.

Mr Mileham clarified that he was not concerned about timeframes, he was concerned about the criteria for membership.

Mr Nwaila said that foreign nationals do not qualify to stand for elections.

The Chairperson asked Mr Nwaila if such cases existed.

Mr Nwaila responded that yes were cases were foreign nationals have lived in a community for a long time, particularly in places that border Swaziland, Mozambique, Botswana and so forth. He suggested that in order to eliminate the problem, the clause that Mileham suggested should be used to cover this provision.

Mr Bester said that (3) creates the provision, 16(11) deals with vacation. You cannot be a member of the council if you are not a South Africa citizen.

Clause 66
In Clause 66(2), Mr Mileham disagreed with the wording. He said that it was vague and insinuated that anyone can decide on a commencement date. He requested that it should be clear that the commencement date can only be determined by the President. He suggested that commencement dates for various provisions of the Act may be determined by the President by proclamation in the Government Gazette.

Mr Bester reminded the Committee that clauses should be read in toto and sub-clause (1) states that only the President can decide on the commencement date.

Mr Mileham said that the Bill needed to be clear about the process.

Mr Nwaila said that the language the Committee was using would allow traditional structures to be aligned. He asked if the sub-clause can be removed.

Mr Bester said that there are timeframes within the Bill itself to deal with this challenge. Once the Bill is signed off by the President and proclaimed in the Government Gazette, the date of proclamation was automatically the date of coming into operation of the Bill into legislation.

The Chairperson reiterated the Director General’s point that the Bill should not allow too much flexibility.

Schedule 1
Mr Nwaila asked if the code of conduct was only confined to Houses and Councils. Traditional leaders in general should also be subject to consequences of misconduct

In Item 7(1) Mr Mileham requested the insertion of “thereafter on an annual basis”.

On page 121, Mr Bester clarified that any author of a particular document may classify the document. The Bill therefore cleared that confusion by explicitly stating that the House cannot classify a document as they wish, only the author of the document can classify it.

Item 11
In Item 11 of Schedule 1, Mr Mileham asked why the chairperson was being excluded.

Mr Bester responded that 11(3)(a) deals with breach of the code of conduct by the chairperson of the provincial house.

Mr Mileham suggested a new clause that when a premier fails to conduct an investigation, the Minister should intervene. His concern was that there may be factions which would prevent the premier from conducting investigations.

Mr Nwaila agreed with Mr Mileham’s proposal and added that the premier’s intervention should have a time frame.

On page 126, the Chairperson suggested that the oath should be simple. It should be similar to the oath councillors, parliamentary members and provincial legislators are familiar with. He had no issue with venerating the ancestors, but he felt that a simple oath would be more suitable.

Mr Nwaila asked if the oath did not exclude atheists or those who were not religious.

Mr Mileham distinguished between an affirmation and oath and said that the affirmation covers non-religious people.

On page 138, Ms Maluleke asked if the clause does not promote non-attendance.

Mr Mileham disagreed because traditional leaders are participants in council, they are not members of council and thus do not have decision making powers. The decisions of council would not be delegitimised by their absence.

The Chairperson agreed that traditional leaders are not part of the quorum, they may influence decision making but do not make decisions. Their participation should however be encouraged.

The Chairperson reiterated that clarity of the Bill is important because once it gets to court it could be rejected if it is not easy to interpret. He was pleased with the Bill’s gender neutral and progressive approach.

The Chairperson asked how long it would take for the amendments to be incorporated.

Ms Lufundo replied that the changes will be implemented by Tuesday 10 October..

The meeting was adjourned.

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